22 F. Cas. 92 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1856
The jus pretorium of the Roman law, from which our system of equity has its origin, was introduced when chancellors were priests. The writ of subpoena is said to have been first devised by Chancellor Waltham, bishop of Salisbury. It met with opposition at the beginning by parliament, “because its proceedings were according to the civil law and the law of holy church, in subversion of the common law.” But notwithstanding the opposition then, and also of Sir Edward Coke and the common law courts at a later day, the chancellors persevered in extending their jurisdiction, and when the office ceased to be in the hands of ecclesiastics, a system of jurisprudence and jurisdiction was built up on a rational foundation by the learning and ability of Nottingham and his successors. Yet it still retains some of the features which originally caused the enmity of the common lawyers and the parliament. One of these is the mode of taking testimony. At common law it was considered as essential to justice and the protection of the rights of the litigant that the witnesses should be examined in presence of the parties to be affected, and of .the tribunal whose decision was to be governed by the testimony. The mode of taking testimony in chancery, as introduced from “the civil law and law of holy church,” is by secret inquisition. The reason given for this practice is said to be “in order to avoid the risk of defects being discovered in the course of taking it, and false evidence being procured to remedy them.” Adam, Eq. 64. As a reason for a foregone conclusion, this was no doubt considered satisfactory, though it might as well read “to avoid the risk of defects and falsehood being discovered, and true evidence being procured to remedy them.”
And yet, while it is true that as a general rule of courts of chancery, all witnesses will be examined on interrogatories, either by the regular examiner of the court or through the medium of commissioners specially appointed, it has never been decided that a chancellor had no power to order otherwise in a particular case, where he might consider it necessary to a proper investigation of the facts. No court is so enslaved by its general rules as to be powerless, when justice requires an exception to their operation. Accordingly, numerous cases of exceptions may be found in the books of Practice. Daniell, Eq. Prac. 1048. The practice also of sending issues of fact to a court of law to be tried by a jury and according to the principles of the common law, may be truly said to be an exception to this ecclesiastical rule of trying facts by secret inquisition, and an admission of its incompetency- for a proper investigation of the truth.
But assuming a court of equity to be so bound up by their general rules, that they have no power to deviate from them in a special case for sufficient cause shown; is there any statute or iron rule of practice which compels the courts of equity of the United States to adhere to this policy of the civil and ecclesiastical law as a fundamental principle in the administration of justice?
The act of 1789, constituting the courts of the United States, declares “that the mode of proof by oral testimony and examination of witnesses, shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction, as of actions at common law.”
Whatever, therefore, may be the force and binding effect of this fundamental principle as to the peculiar “mode of proof,” in the English courts of chancery, it is clearly repudiated and abolished as a rule of practice in the courts of equity of the United States.
It is not a fair construction of the sixty-seventh rule of court, which imputes to it an intention of repealing or overruling an act of congress admitted to be within the scope of its constitutional power.
It being found inconvenient and dilatory in practice, and seldom necessary to a proper investigation of causes, to have witnesses examined ore tenus in open court, in chancery cases, the sixty-seventh rule merely provides, that “after the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term.”
When witnesses live at a distance, the parties are compelled to resort to this rule in order to obtain their testimony; and in most cases, when the witnesses might be brought into court, this practice is pursued as most convenient. Judges have been rather disposed to discountenance the production of witnesses in court, on account of the delay consequent on an ore tenus examination. Besides, counsel, who are more apt to look to books of chancery practice than to their own statute books, have either not been aware of the rights of their clients, or not thought it a matter of sufficient importance to urge them. Hence it is, that the old practice has been generally pursued, and perhaps enforced, without much inquiry.
The act of 1789 is a fundamental statute; and we have, therefore, as a fundamental principle in the administration of equity in the courts of the United States, that the mode
The circuit courts of the United States have original jurisdiction in patent cases, and do not exercise their authority merely as auxiliary to a court of law, and for a more effectual remedy. Hence we do not feel bound in all cases to send a party to establish his right in a court of law, before granting a final injunction. In many questions of originality and infringement of patents, the concurrent opinion of twelve men, with little knowledge of the principles of science and philosophy which affect the case, may give but little satisfaction to the conscience of a chancellor: Hence it is becoming more common to examine these questions in courts of equity, without the aid of a jury, unless where the issue depends rather on the credibility of witnesses, than the value of their opinions as experts or philosophers. But such cases cannot be properly brought before the court by secret examination of the witnesses. It is almost impossible to frame interrogatories in chief so as completely to elicit the truth, where the witness has to refer to complex models or drafts. The whole truth can seldom be obtained, or falsehood detected, unless by a sharp cross-examination ore tenus, by skilful counsel. It is sometimes the case also, and in fact, too often, that the party, or his counsel, prepare the answers for their witnesses after consultation, so that the witness comes before the examiner and reads off his answers to the several interrogatories, as prepared for him by the party who produces him. That such things are sometimes done, we know; but how often, we cannot know. And however ready a court may be to suppress testimony thus made up, the fact must be known to the opposite party before he can make proof of it; and this secret mode of taking testimony, gives no opportunity for its discovery.
As a question of mere policy and the proper administration of justice, we believe that the truth of a case can be better eviscerated, by an ore tenus examination of the witnesses by counsel, than by the secret method of inquisition borrowed from “holy church.”
We are of opinion, therefore—
1. That this portion of the peculiar policy of courts of equity has in the courts of the United States been rejected by statute, and that it never has been a fundamental principle in their administration of equity.
2. That the sixty-seventh rule of the series of rules promulgated by the supreme court, in 1842, does not affect to annul the act of congress, or the policy established by it.
3. That a party has therefore a right to demand an examination of witnesses within the jurisdiction of the court, ore tenus, according to the principles of the common law, either by having them produced in court, or by having leave to cross-examine them face to face before the examiner.
4. That the court had not only power to. make the rule or order complained of in this ease, but was bound to. allow it, not only as requisite to a proper development of the facta necessary to its just decision, but also as a. right of the party guaranteed by law.
Motion denied.